In re Carissa K.

• Citation: 740 A.2d 896,55 Conn. App. 768
• Decision Date: 16 November 1999
• Docket Number: (AC 18600)
• Court: Connecticut Court of Appeals
• Parties: IN RE CARISSA K. ET AL.

55 Conn. App. 768

740 A.2d 896

IN RE CARISSA K. ET AL.¹

(AC 18600)

Appellate Court of Connecticut.

Argued September 22, 1999.

Officially released November 16, 1999.

Lavery, Landau and Dupont, Js. David B. Rozwaski, for the appellant (respondent D).

Mary K. Lenehan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

Opinion

LANDAU, J.

The respondent D appeals from the judgments of the trial court terminating his parental rights with respect to his daughter, C, and terminating the parental rights of Z, the putative father of J.² D claims that the court improperly found (1) that he failed to achieve such degree of personal rehabilitation as would encourage the belief that he could assume a responsible position in the children's lives, (2) that he committed an act of omission or commission that denied the care, guidance and control necessary for the children's welfare and (3) that termination of parental rights was in the best interests of the children. In her counterstatement of the issues, the commissioner of children and families (commissioner) claims that D lacks standing to appeal from the judgment terminating Z's parental rights as to J.³ We dismiss D's appeal from the judgment regarding J and affirm the judgment terminating D's parental rights as to C.

The following facts are relevant to this appeal. The children, C, born February 18, 1991, and J, born September 7, 1992, first came to the attention of the department of children and families (department) in 1993, when they were briefly taken into custody because their mother was missing and D was intoxicated. In 1994, D commenced an action in the Probate Court seeking custody of the children because of their mother's drug addiction.⁴ At that time, D was believed to be the biological father of both children. Subsequent genetic testing excluded D as J's natural father, and Z⁵ was identified as J's putative father. Nevertheless, the Probate Court awarded the children's mother and D joint custody of the children, who were to spend alternating weeks with each adult.

D's guardianship application in the Probate Court resulted in the department's reinvolvement with the family. The mandated social study conducted in connection with that application disclosed domestic abuse between D and the children's mother, alcohol and drug addiction, and concerns about D's ability to maintain adequate income and housing for the children. On September 2, 1994, C's maternal uncle disclosed to a psychotherapist that he had had oral sex with his niece. On January 27, 1995, the department secured an order of temporary custody of both children based on the chaotic living conditions at their mother's home and the alcohol and drug abuse by both D and the mother, as well as D's unstable and inadequate living conditions. The children have been in foster care since that date.

On March 29, 1995, following an overnight visit with D, C disclosed facts to a department social worker indicating that D had sexually abused her. Later, J described an incident suggesting that D had sexually abused him also. D was charged with sexual assault. In November, 1997, as the result of a plea bargain, D was convicted of risk of injury to a child and sentenced to three years imprisonment, execution suspended, with five years of probation. The trial court imposed as a condition of probation that D have no contact with children under the age of sixteen, including C and J, until his probationary period ended in 2002. At the time of the termination hearing that is the subject of this appeal, D was incarcerated, awaiting trial on charges that he had violated the terms of his probation.

Subsequent to her disclosure of sexual abuse, C was interviewed numerous times by police, social workers, therapists and psychiatrists. She also reported incidents of abuse to her foster mother. C's behavior, which she acted out with other children, including J, was sexually inappropriate. Both children have received psychotherapy.

On September 6, 1995, both children were committed to the care and custody of the department as uncaredfor children with special needs. On April 16, 1997, the commissioner filed petitions pursuant to General Statutes (Rev. to 1997) § 17a-112⁶ to terminate the parental rights of D and Z with respect to J, and of D with respect to C.⁷ In each petition, the commissioner alleged two grounds as reasons to terminate D's parental rights: failure to achieve personal rehabilitation and denial of necessary care, guidance and control by acts of commission or omission.

At a hearing on the petitions held during four days in April, 1998, the trial court heard testimony from department social workers, the children's psychotherapists, several foster parents, the social workers and nurse involved in interviewing the children with respect to the allegations of sexual abuse and two expert witnesses. The court received twenty-five exhibits in evidence and took judicial notice of the prior proceedings involving D and the children. D was present during the trial and, through counsel, vigorously contested the termination petitions. The court found by clear and convincing evidence that each of the bases of the commissioner's petition to terminate D's parental rights with respect to C existed and that it was in C's best interest to terminate D's parental rights. The court rendered judgment accordingly. The court also terminated Z's parental rights as to J. This appeal followed. Additional facts will be stated as necessary.

I

The commissioner claims that D lacks standing to appeal from the termination of parental rights as to J. At oral argument, D stated that he was only contesting the dispositional phase, i.e., whether termination of parental rights was in the best interest of the child. He argues that the court should have permitted him to maintain his "parental rights" because "the concept of family encompasses more than traditional father and mother." We agree with the commissioner that D lacks standing to appeal any portion of the termination proceeding with respect to J.

Review by way of appeal is governed in general by General Statutes § 52-263, which provides in relevant part: "Upon the trial of all matters of fact in any cause or action in the Superior Court ... if either party is aggrieved by the decision of the court or judge ... he may appeal to the court having jurisdiction from the final judgment of the court ...." "An aggrieved party may appeal from a final judgment, except as otherwise provided by law." Practice Book § 61-1, formerly § 4000. The question of aggrievement is essentially one of standing, and unless D is aggrieved by the decision of the trial court, he has no standing to appeal. See Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). "Where a party lacks standing to appeal, the court is without subject matter jurisdiction. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised.... [W]henever a lack of jurisdiction to entertain a particular proceeding comes to a court's notice, the court can dismiss the proceeding upon its own motion." (Internal quotation marks omitted.) Marine Midland Bank v. Ahern, 51 Conn. App. 790, 797, 724 A.2d 537, cert. granted on other grounds, 248 Conn. 921, 733 A.2d 845 (1999). "The parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent." (Internal quotation marks omitted.) Jolly, Inc. v. Zoning Board of Appeals, supra, 192.

The following additional facts are necessary for our review of this claim. On January 27, 1995, the court, Sequino, J., granted an ex parte order of temporary custody as to C and J. Simultaneously, neglect petitions naming the children's mother and D as parents also were filed. On February 7, 1995, the court, Sequino, J., ordered paternity testing. The results excluded D as J's natural father and the court ordered D's name stricken from the neglect petition as to J. At the extension of commitment hearing held on February 27, 1997, the court, Jones, J., conferred full party status on D with respect to the termination involving J because D was deemed to be J's psychological father, he was the petitioner in the Probate Court guardianship proceedings and was named as J's father on the neglect petition. Following the trial on the termination petitions, the court, Quinn, J., found that genetic tests had excluded D as J's "biological father." The court, therefore, did not adjudicate either phase of the termination proceedings as to J with respect to D.⁸

"`Termination of parental rights' means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and the child's parent or parents...." General Statutes § 45a-707 (8). "Termination of parental rights is a most serious and sensitive judicial action." (Internal quotation marks omitted.) In re Barbara J., 215 Conn. 31, 44, 574 A.2d 203 (1990). "Since termination of parental rights is the ultimate interference by the state with the natural rights of parents in their children, resulting in an everlasting severance of the legal relationship, and usually the permanent separation of parent and child as well, courts must require strict adherence to the statutory standards." In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986).

Chapter 319a, part I, of our General Statutes concerns dependent and neglected children, and includes § 17a-112, titled, "Termination of parental rights of child committed to commissioner." General Statutes § 17a-93 contains the definitions used throughout the chapter, including § 17a-112. The word parent means "natural or adoptive parent...."...